Top IP Cases

2023 was a big year for U.S. intellectual property law. Major developments occurred in every area. Here are the highlights

2023 was a big year for U.S. intellectual property law. Major developments occurred in every area. Here are the highlights.

Copyright

Fair Use

Andy Warhol Foundation for the Visual Arts v. Goldsmith

This was one of the top copyright cases of 2022. It was a case that was pushing the limits of the  transformative fair use of photographs. The Supreme Court issued a ruling in the case in May. The decision is significant because it finally reined in the “transformative use” doctrine that the Court first announced in Campbell v. Acuff-Rose Music back in 1994. In that case, 2 Live Crew had copied key parts of the Roy Orbison song, “Oh, Pretty Women” to make a parody of the song in its own rap style. The Court held that the 2 Live Crew version, although reproducing portions of both the original song and the original recording of it without permission, transformed it into something else. Therefore, even though it infringed the copyright, the 2 Live Crew version was for a transformative purpose and therefore protected as fair use.

In the thirty years since Campbell, lower courts have been applying the “transformative use” principle announced in Campbell in diverse and divergent ways. Some interpretations severely eviscerated the copyright owner’s exclusive right to make derivative works. Their interpretations often conflicted. What one circuit called transformative “fair use” another circuit called actionable infringement. Hence the need for Supreme Court intervention.

In 1984, Vanity Fair licensed one of photographer Lynn Goldsmith’s photographs of Prince to illustrate a magazine article about him. Per the agreement, Andy Warhol made a silkscreen using the photograph for the magazine and Vanity Fair credited the original photograph to Goldsmith. Unknown to her, however, Warhol proceeded to make 15 additional works based on Goldsmith’s photograph withour her permission.. In 2016, the Andy Warhol Foundation for the Arts licensed one of them to Condé Nast as an illustration for one of their magazines. The Foundation received a cool $10,000 for it, with neither payment nor credit given to Goldsmith. The Foundation then filed a lawsuit seeking a declaration that its use of the photograph was a protected fair use under 17 U.S.C. § 107. The district court granted declaratory judgment in favor of the Foundation. The Second Circuit Court of Appeals reversed, ruling that the four-factor “fair use” analysis favored Goldsmith. The Supreme Court sided with the Court of Appeals.

Noting that it was not ruling on whether Warhol’s making of works using the photograph was fair use, the Court limited its analysis to the narrow question whether the Foundation’s licensing of the Warhol work to Condé Nast was fair use. On that point, the Court determined that the use of the photograph to illustrate a story about Prince was identical to the use Goldsmith had made of the photograph (i.e., to illustrate a magazine article about Prince.) Unlike 2 Live Crew’s use of “Oh, Pretty Woman,” the purpose of the use in this case was not to mock or parody the original work.

The case is significant for vindicating the Copyright Act’s promise to copyright owners of an exclusive right to make derivative works. While Warhol put his own artistic spin on the photograph – and that might have been sufficient to sustain a fair use defense if he had been the one being sued – the Warhol Foundation’s and Condé Nast’s purpose was no different from Goldsmith’s, i.e., as an illustration for an article about Prince. Differences in the purpose or character of a use, the Court held, “must be evaluated in the context of the specific use at issue.” Had the Warhol Foundation been sued for displaying Warhol’s modifications of the photograph for purposes of social commentary in its own gallery, the result might have been different.

Although the holding is a seemingly narrow one, the Court did take the opportunity to disapprove the lower court practice of ending a fair use inquiry at the moment an infringer asserted that an unauthorized copy or derivative work was created for a purpose different from the original author’s.

Statute of Limitations and Damages

Warner Chappell Music v. Nealy

The U.S. Supreme Court granted certiorari to review this Eleventh Circuit decision. At issue was whether a copyright plaintiff may recover damages for infringement that occurred outside of the limitations period, that is, infringement occurring more than three years before a lawsuit was filed.

The circuits were split on this question. According to the Second Circuit, damages are recoverable only for acts of infringement that occurred during the 3-year period preceding the filing of the complaint. The Ninth and Eleventh Circuits, on the other hand, had held that as long as the lawsuit is timely filed, damages may be awarded for infringement that occurred more than three years prior to the filing, at least when the discovery rule has been invoked to allow a later filing. In Nealy, the Eleventh Circuit held that damages may be recovered for infringement occurring more than three years before the claim is filed if the plaintiff did not discover the infringement until some time after it first began.

The United States Supreme Court has resolved the Circuit split. Read about the Supreme Court’s decision in Warner Chappell Music, Inc. v. Nealy.

Artificial Intelligence

Copyrightability

Thaler v. Perlmutter

This was an APA proceeding initiated in the federal district court of the District of Columbia for review of the United State Copyright Office’s refusal to register a copyright in an AI-generated work. In August, 2023, the district court upheld the Copyright Office’s decision that an AI-generated work is not protected by copyright, asserting that “human creativity is the sine qua non at the core of copyrightability….” For purposes of the Copyright Act, only human beings can be “authors.” Machines, non-human animals, spirits and natural forces do not get copyright protection for their creations.

Thaler appealed. Read more about what happened in Last Exit from Paradise.

Infringement

Many cases that are pending allege that using copyrighted works to train AI, or creating derivative works using AI, infringes the copyrights in the works so used. Most of these cases make additional claims as well, such as claims of unfair competition, trademark infringement, or violations of publicity and DMCA rights.

 I have been blogging about these cases for some time and periodically provide updates on them.

Trademark

Parody Goods

Jack Daniel’s Properties v. VIP Products

For more information about this case, read Balancing the First Amendment on Whiskey and Dog Toys.

This is the “parody goods” case. VIP Products used the “Bad Spaniels” name to market its dog toys, which were patterned on the distinctive shape of a Jack Daniel’s whiskey bottle. VIP filed a lawsuit seeking a declaratory judgment that its product did not infringe the Jack Daniel’s brand. Jack Daniel’s counterclaimed for trademark infringement and dilution. Regarding infringement, VIP claimed First Amendment protection. Regarding dilution, VIP claimed the use was a parody of a famous mark and therefore qualified for protection as trademark fair use. The district court granted summary judgment to VIP.

The Supreme Court reversed. The Court held that when an alleged infringer uses the trademark of another (or something confusingly similar to it) as a designation of source for the infringer’s own goods, it is a commercial, not an expressive, use. Accordingly, the First Amendment is not a consideration in such cases.

Rogers v. Grimaldi had held that when the title of a creative work (in that case, a film) makes reference to a trademark for an artistic or expressive purposes (in that case, Fred Astaire and Ginger Rogers), the First Amendment shields the creator from trademark liability. In the Jack Daniel’s case, the Court distinguished Rogers, holding that it does not insulate the use of trademarks as trademarks (i.e. as indicators of the source or origin of a product or service) from ordinary trademark scrutiny. Even though the dog toys may have had an expressive purpose, VIP admitted it used Bad Spaniels as a source identifier. Therefore, the First Amendment does not apply.

The Court held that the same rule applies to dilution claims. The First Amendment does not shield parody goods from a dilution claim when the alleged diluter uses a mark (or something confusingly similar to it) as a designation of source for its own products or services.

International Law

Abitron Austria v. Hetronic International

Here, the Supreme Court held that the Lanham Act does not have extraterritorial reach. Specifically, the Court held that Sections 1114(1)(a) and 1125 (a)(1) extend only to those claims where the infringing use in commerce occurs in the United States. They do not extend to infringement occurring solely outside of the United States, even if consumer confusion occurs in the United States.

The decision is a reminder to trademark owners that if they want to protect their trademark rights in other countries, they should take steps to protect their rights in those countries, such as by registering their trademarks there.

Patents

Patents are beyond the scope of this blog. Even so, a couple of developments are worth noting.

Enablement

Amgen v. Sonofi

In this case, the Supreme Court considered the validity of certain patents on antibodies used to lower cholesterol under the Patent Act’s enablement requirement (35 U.S.C. sec. 112(a)).  At issue was whether Amgen could patent an entire genus of antibodies without disclosing sufficient information to enable a person skilled in the art to create the potentially millions of antibodies in it. The Court basically said no.

If a patent claims an entire class of processes, machines, manufactures, or compositions of matter, the patent’s specification must enable a person skilled in the art to make and use the entire class. In other words, the specification must enable the full scope of the invention as defined by its claims.

Amgen v. Sanofi, 598 U.S. ____ (2023)

Conclusion

My vote for the most the significant IP decision in recent times is Andy Warhol Foundation v. Goldsmith. Lower courts had all but allowed the transformative use defense to swallow up the exclusive right of a copyright owner to create derivative works. The Supreme Court provided much-needed correction. I predict that going forward, the most significant decisions will also be in the copyright realm, but they will have to do with AI.

Visit my extensive Copyright FAQs page.

Generative-AI: The Top 12 Lawsuits

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are the most significant lawsuits that have been filed so far.

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are some of the most significant lawsuits that have been filed so far.

Prompt asking ChatGPT to write a blog post in style of Thomas B James

Most of these allege copyright infringement, but some make additional or other kinds of claims, such as trademark, privacy or publicity right violations, defamation, unfair competition, and breach of contract, among others. So far, the suits primarily target the developers and purveyors of generative AI chatbots and similar technology. They focus more on what I call “input infringement” than on “output infringement.” That is to say, they allege that copyright infringement is involved in the way particular AI tools are trained.

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence, Inc.

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence Inc., No. 20-cv-613 (D. Del. 2020)

Thomson Reuters alleges that ROSS Intelligence copied its Westlaw database without permission and used it to train a competing AI-driven legal research platform. In defense, ROSS has asserted that it only copied ideas and facts from the Westlaw database of legal research materials. (Facts and ideas are not protected by copyright.) ROSS also argues that its use of content in the Westlaw database is fair use.

One difference between this case and subsequent generative-AI copyright infringement cases is that the defendant in this case is alleged to have induced a third party with a Westlaw license to obtain allegedly proprietary content for the defendant after the defendant had been denied a license of its own. Other cases involve generative AI technologies that operate by scraping publicly available content.

Update: The court has now issued a fair use decision in Thomson Reuters v. ROSS Intelligence. After reviewing the headnotes and comparing them with the database materials, Judge Bilbas concluded that 2,243 headnotes were sufficiently creative and original to receive copyright protection, that Ross infringed them, and that “fair use” was not a defense in this instance because the purpose of the use was commercial and it competed in the same market. This decision might have limited value as a precedent, since it involved non-generative AI. Generative AI tools may be distinguishable in the fair use analysis. The district court approved Ross’s motion for interlocutory appeal. The case is under review by the Third Circuit Court of Appeals.

Doe 1 et al. v. GitHub, Inc. et al.

Doe 1 et al. v. GitHub, Inc. et al., No. 22-cv-06823 (N.D. Calif. November 3, 2022)

This is a class action lawsuit against GitHub, Microsoft, and OpenAI that was filed in November, 2022. It involves GitHub’s CoPilot, an AI-powered tool that suggests lines of programming code based on what a programmer has written. The complaint alleges that Copilot copies code from publicly available software repositories without complying with the terms of applicable open-source licenses. The complaint also alleges removal of copyright management information in violation of 17 U.S.C. § 1202, unfair competition, and other tort claims.

Updates: The court dismissed most of the plaintiffs’ claims, but allowed them to proceed with claims for breach of open-source licenses and granted leave to amend the DMCA claims in the complaint.

Plaintiffs filed an amended complaint. The court, however, dismissed the DMCA claim, reasoning that the statute imposes an “identicality” standard (i.e., the AI’s output must be an exact, literal copy of the plaintiff’s work). Because plaintiffs alleged that Copilot’s outputs often generate modified versions of their original code rather than strict identical copies, the court dismissed the claim.

Judge Tigar certified the question whether identicality is required for interlocutory appeal to the Ninth Circuit Court of Appeals

Andersen et al. v. Stability AI et al.

Andersen et al. v. Stability AI et al., No. 23-cv-00201 (N.D. Calif. Jan. 13, 2023)

  • Update: As noted in my first update on Anderson v. Stability, Judge Orrick dismissed all claims except for Andersen’s direct infringement claim against Stability. Most of the dismissals, however, were granted with leave to amend.
Library of Congress housing the U.S. Copyright oFfice

Trial is scheduled for 2027.

Getty Images v. Stability AI

Plaintiffs filed an amended complaint, having secured proper copyright registrations for the underlying art. Defendants filed a motion to dismiss it. The court denied the motion. The ruling on the motion suggests that copied images scraped into the training datasets can constitute direct infringement, and that AI models may inherently constitute a continuous, new form of infringing materials. The court also allowed the artists’ claims regarding false endorsement and trade-dress infringement to proceed. These claims address AI tools mimicking an artist’s name and style.

Getty Images v. Stability AI, No. 23-cv-00135-UNA (D. Del. February 23, 2023)

Getty Images has filed two lawsuits against Stability AI, one in the United Kingdom and one in the United States, each alleging both input and output copyright infringement. Getty Images owns the rights to millions of images. It is in the business of licensing rights to use copies of the images to others. The lawsuit also accuses Stability AI of falsifying, removing or altering copyright management information, trademark infringement, trademark dilution, unfair competition, and deceptive trade practices.

Stability AI has moved to dismiss the complaint filed in the U.S. for lack of jurisdiction.

Updates: Getty voluntarily dismissed the Delaware case and refiled the lawsuit in the U.S. District Court for the Northern District of California. Getty Images v. Stability AI, No. 3:25-cv-06891 (N.D. Calif. 2025).

In 2026, Judge Thompson dismissed the DMCA claim, but allowed claims for direct copyright infringement, trademark violation, and unfair competition to proceed.

Getty Images dropped the input-infringement copyright claim that it had filed in the U.K., primarily because it could not definitively prove where the model was trained (i.e., whether it was inside or outside the UK).

The UK court rejected Getty Images’s argument that the Stable Diffusion software itself was an “infringing copy” of an article imported into the UK. The court ruled that AI model weights are not copies; they are abstract statistical parameters that do not store or reproduce actual images.

Getty Images prevailed on trademark claims in the U.K., however.

Flora et al. v. Prisma Labs, Inc.

Flora et al. v. Prisma Labs, Inc., No. 23-cv-00680 (N.D. Calif. February 15, 2023)

Jack Flora and others filed a class action lawsuit against Prisma Labs for invasion of privacy. The complaint alleges, among other things, that the defendant’s Lensa app generates sexualized images from images of fully-clothed people, and that the company failed to notify users about the biometric data it collects and how it will be stored and/or destroyed, in violation of Illinois’s data privacy laws.

Update: The court granted a motion to compel arbitration.

Young v. NeoCortext, Inc.

Young v. NeoCortext, Inc., 2023-cv-02496 (C.D. Calif. April 3, 2023)

This is a publicity rights case. NeoCortext’s Reface app allows users to paste images of their own faces over those of celebrities in photographs and videos. Kyland Young, a former cast member of the Big Brother reality television show, has sued NeoCortext for allegedly violating his publicity rights. The complaint alleges that NeoCortext has “commercially exploit[ed] his and thousands of other actors, musicians, athletes, celebrities, and other well-known individuals’ names, voices, photographs, or likenesses to sell paid subscriptions to its smartphone application, Reface, without their permission.”

NeoCortext has asserted a First Amendment defense, among others.

Update: U.S. District Judge Wesley L. Hsu denied NeoCortext’s motion to dismiss. Judge Hsu ruled that Young’s right of publicity claim was not preempted by the Copyright Act because he was seeking to vindicate the misuse of his personal likeness, not just the distribution of copyrighted images. The app’s face-swapping capabilities did not qualify as a “transformative use” defense as a matter of law at the dismissal stage.

Walters v. OpenAI, LLC

Walters v. OpenAI, LLC, No. 2023-cv-03122 (N.D. Ga. July 14, 2023) (Complaint originally filed in Gwinnett County, Georgia Superior Court on June 5, 2023; subsequently removed to federal court)

This is a defamation action against OpenAI, the company responsible for ChatGPT. The lawsuit was brought by Mark Walters. He alleges that ChatGPT provided false and defamatory misinformation about him to journalist Fred Riehl in connection with a federal civil rights lawsuit against Washington Attorney General Bob Ferguson and members of his staff. ChatGPT allegedly stated that the lawsuit was one for fraud and embezzlement on the part of Mr. Walters. The complaint alleges that Mr. Walters was “neither a plaintiff nor a defendant in the lawsuit,” and “every statement of fact” pertaining to him in the summary of the federal lawsuit that ChatGPT prepared is false. A New York court recently addressed the questions of sanctions for attorneys who submit briefs containing citations to non-existent “precedents” that were entirely made up by ChatGPT. This is the first case to address tort liability for ChatGPT’s notorious creation of “hallucinatory facts.”

In July, 2023, Jeffery Battle filed a complaint against Microsoft in Maryland alleging that he, too, has been defamed as a result of AI-generated “hallucinatory facts.” Battle v. Microsoft.

Update on Walters v. OpenAI, LLC: In 2025, the court granted summary judgment in favor of OpenAI, on three grounds:

  • No Factual Statement: The court ruled that a reasonable reader would not interpret the ChatGPT output as stating actual facts. This was heavily influenced by the AI’s internal disclaimers, its warning to the user that it lacked access to the referenced document, and the user’s own admission that he quickly verified the claim was false.
  • No Fault or Malice: To win a defamation claim as a public figure, Walters needed to prove OpenAI acted with negligent disregard for truth or “actual malice.” The court found he failed to provide evidence of either. OpenAI successfully argued that it leads the AI industry in reducing such “hallucinations” through training and human feedback.
  • Lack of Damages: The court noted Walters did not suffer provable damages or ask OpenAI for a retraction before filing, making him ineligible to recover the punitive or presumed damages he sought.

P.M. et al. v. OpenAI LP et al.

P.M. et al. v. OpenAI LP et al., No. 2023-cv-03199 (N.D. Calif. June 28, 2023)

This lawsuit has been brought by underage individuals against OpenAI and Microsoft. The complaint alleges the defendants’ generative-AI products ChatGPT, Dall-E and Vall-E collect private and personally identifiable information from children without their knowledge or informed consent. The complaint sets out claims for alleged violations of the Electronic Communications Privacy Act; the Computer Fraud and Abuse Act; California’s Invasion of Privacy Act and unfair competition law; Illinois’s Biometric Information Privacy Act, Consumer Fraud and Deceptive Business Practices Act, and Consumer Fraud and Deceptive Business Practices Act; New York General Business Law § 349 (deceptive trade practices); and negligence, invasion of privacy, conversion, unjust enrichment, and breach of duty to warn.

Update: Plaintiffs filed a voluntary dismissal.

Tremblay v. OpenAI, Inc.

Tremblay v. OpenAI, Inc., No. 23-cv-03223 (N.D. Calif. June 28, 2023)

Another copyright infringement lawsuit against OpenAI relating to its ChatGPT tool. In this one, authors allege that ChatGPT is trained on the text of books they and other proposed class members authored, and facilitates output copyright infringement. The complaint sets forth claims of copyright infringement, DMCA violations, and unfair competition.

Updates: The court dismissed claims of vicarious copyright infringement, Digital Millennium Copyright Act (DMCA) violations, negligence, and unjust enrichment. Claims for direct copyright infringement of the input kind, and unfair trade practices, survived.

The Judicial Panel on Multidistrict Litigation centralized dozens of AI copyright lawsuits against OpenAI into a single venue: U.S. District Court for the Southern District of New York under Judge Sidney H. Stein. In Re OpenAI, Inc. Copyright Infringement Litigation. Tremblay is included in this consolidation.

Silverman et al. v. OpenAI

Silverman et al. v. OpenAI, No. 23-cv-03416 (N.D. Calif. July 7, 2023)

Sarah Silverman (comedian/actress/writer) and others allege that OpenAI, by using copyright-protected works without permission to train ChatGPT, committed direct and vicarious copyright infringement, violated section 17 U.S.C. 1202(b), and their rights under unfair competition, negligence, and unjust enrichment law.

Updates: In February 2024, U.S. District Judge Araceli Martínez-Olguín issued a joint ruling covering both the Tremblay and Silverman motions to dismiss. The court dismissed claims of vicarious copyright infringement, negligence, and unjust enrichment, but allowed the input infringement claim to proceed. OpenAI did not contest that using the plaintiffs’ books to train its Large Language Models (LLMs) required a “fair use” determination

On June 25, 2025 Judge Chhabria issued a ruling on fair use. The court granted Meta’s motion for summary judgment on fair use with respect to AI training; reserved the motion for summary judgment on the DMCA claims for decision in a separate order, and held that the claim of infringing distribution via leeching or seeding “will remain a live issue in the case.”

The case has been consolidated into the broader Multidistrict Litigation (MDL) pending in the Southern District of New York.

Kadrey et al. v. Meta Platforms

Kadrey et al. v. Meta Platforms, No. 2023-cv-03417 (N.D. Calif. July 7, 2023)

The same general kinds of allegations as are made in Silverman v. OpenAI, but this time against Meta Platforms, Inc.

Update: There has been a ruling in Kadrey v. Meta Platforms.

J.L. et al. v. Alphabet Inc. et al.

J.L. et al. v. Alphabet Inc. et al. (N.D. Calif. July 11, 2023)

This is a lawsuit against Google and its owner Alphabet, Inc. for allegedly scraping and harvesting private and personal user information, copyright-protected works, and emails, without notice or consent. The complaint alleges claims for invasion of privacy, unfair competition, negligence, copyright infringement, and other causes of action.

Update: Plaintiffs voluntarily dismissed defendants Alphabet Inc. and Google DeepMind. Google LLC remains the sole defendant, and the litigation—now tracked as In re Google Generative AI Copyright Litigation—is proceeding.

On the regulatory front

The U.S. Copyright Office is examining the problems associated with registering copyrights in works that rely, in whole or in part, on artificial intelligence. The U.S. Federal Trade Commission (FTC) has suggested that generative-AI implicates “competition concerns.”. Lawmakers in the United States and the European Union are considering legislation to regulate AI in various ways.

Update on Copyright Office Reports: The Copyright Office has issued reports in three parts:

Part 1: Digital Replicas

Released on July 31, 2024, this initial part addresses the unauthorized use of AI to realistically replicate an individual’s voice or appearance (e.g., deepfakes and AI-generated music tracks mimicking famous artists). The Copyright Office recommends that Congress enact a new federal law to protect individuals from unauthorized digital replica distributions. See Copyright and Artificial Intelligence Part 1 -Digital Replicas.

Part 2: Copyrightability

This Report addresses whether and to what extent AI-generated output is protected by copyright. Key findings and conclusions:

  • Prompts are Insufficient: Text prompts generally function merely as instructions to convey unprotectable ideas. Because a user does not exercise ultimate creative control over how the AI generates the final material, prompts alone do not establish human authorship.
  • AI as a Creative Tool: If a human author maintains sufficient control over the expressive elements, the work can be protected. For example, if a creator inputs their own hand-drawn art and uses AI to refine it, the original perceptible human work remains copyrightable.
  • Modifications and Arrangements: Humans can claim copyright over the creative selection, coordination, arrangement, or expressive modification of AI-generated content. However, protection only applies to the human-contributed elements, not the AI-generated parts. The Copyright Office mandates transparency. Authors submitting registration applications have a duty to disclose and disclaim any AI-generated content within their applications that is more than minor (de minimis)
  • No New Laws Needed: The Office concluded that existing legal frameworks are flexible enough to evaluate AI cases on a case-by-case basis without need for new legislation.

See Copyright and Artificial Intelligence Part 2 – Copyrightability.

Part 3. Generative-AI Training

This report deals with copyright issues associated with the use of copyrighted works in generative-AI training, especially input infringement.

  • Fair Use Limitations: Using commercial troves of copyrighted works to build models that directly compete with original authors likely stretches past fair use boundaries.
  • The Role of Licensing: The Office highlighted that voluntary licensing markets are already actively emerging across the music and news sectors.

See Copyright and Artificial Intelligence Part 3 – Generative AI Training.

For more updates, see my full AI Lawsuits Roundup.”

For a wealth of information about copyright law, visit my extensive Copyright FAQs page.

How to Do a Trademark Image Search

As I mentioned in my last blog post, the USPTO’s new online Trademark Center now includes a feature that makes it much easier to conduct a trademark image search. This means that instead of scouring the Trademark Design Search Code Manual to try to identify the design attributes that a logo or proposed design possesses, you can ask the new AI-powered search system to look for marks that are similar to an image that you upload. In this article, I will describe the step-by-step process for conducting a trademark image search of the USPTO’s database.

Step-by-Step Guide to USPTO Image Search

Time needed: 10 minutes

An illustrated step-by-step guide to searching with the USPTO’s new Trademark Image Search tool

  1. Log in to your USPTO account.

    You can access the Trademark Image Search tool only when you are logged in to a USPTO account. Visit uspto.gov and click the tab at the top of the screen. You will be offered three options: Log in with your USPTO.gov account, Create a USPTO.gov account, Reactivate my USPTO.gov account. Make the appropriate selection for your situation.

  2. Navigate to the Search Trademarks page

    Open the Trademarks tab at the top of the screen. Then click on the Search trademarks link. This will load the primary search bar page. The dropdown menu on the left defaults to Wordmarks but you will change this in the next steps.

  3. (Optional) Initiate a design code search.

    You can skip this step if you are only interested in using the USPTO’s new Image Search tool. The USPTO recommends using both the new tool and the old design code method. To search for an image the old-fashioned way, select Design code from the dropdown menu on the left end of the search bar. Then type your search code into the text box. Alternatively, you can opt to search by field tags. To do that, select Field Tags and Search builder from the dropdown menu. When you select this option, you can search for design codes using the DC field tag. Searching with field tags has the advantage of enabling you to build a search string specifying more than one parameter.

  4. (Optional) Find the right design code(s).

    Design codes are listed in the USPTO’s Trademark Search Design Code Manual. Each one consists of a series of numbers. Top-level categories are represented by the first couple of numbers. The numbers to the right represent increasingly specific subcategories. It can take a while to find the appropriate design code(s) for a logo you wish to search.

  5. Select Image Search from the dropdown menu.

    To access the new Image Search tool, select Image search from the dropdown menu on the left side of the search bar.

  6. Click the camera icon.

    A small image of a camera is located on the right end of the search bar. Click it. A pop-up window inviting you to upload your image will appear.

  7. Upload the image.

    You can upload your image three ways. (1) Drag and drop it into the box; (2) Click Browse files to select a local drive file; (3) Paste a direct image URL into the box. Ensure your file is a JPEG, PNG, GIF, or TIFF under 2 MB, then click Next.

  8. Ensure Image Search is selected.

    The search bar should now display a thumbnail image of the logo you uploaded. The dropdown menu should have Image search selected.

  9. Correct the dropdown selection, if needed.

    If the dropdown menu is displaying Wordmark or anything else, change it to Image search. You should now have a screen displaying a thumbnail of your image, Image search selected in the dropdown menu, and small camera and magnifying glass icons at the right end of the search bar.

  10. Click the Search icon.

    Click on the magnifying glass icon to execute the image search. A screen displaying one or more trademark records matching your query should appear. The illustrative trademark image search I conducted using the Nike logo turned up several matches. You can filter these using the controls in the left sidebar. For example, you could limit results to “live” registrations and applications, if you wish. You can also restrict the results to specific classes of goods and services. You can sort the results in various ways, such as by relevance, alphabetically, etc.

  11. Click a record for more details.

    To learn more about a record that turned up in your search results, click on it. That will take you to a page with a lot of information about it. You’ll find an image of the mark, the serial and/or registration number, as applicable, the class(es) of goods or services, and other kinds of information.

  12. Scroll for more information.

    If you scroll down the webpage for a record, you will find a huge amount of information about the trademark and its owner.

  13. Review prosecution history

    You can find information about the trademark’s prosecution history and relevant documents.

  14. Toggle to TSDR.

    The Trademark Center enables you to toggle from the trademark image search results to TSDR, the Trademark Status and Document Retrieval entries for a record. In TSDR, you can select three different tabs: (1) Status; (2) Documents; (3) Maintenance. The Status tab provides much of the same information you can find by clicking on a record in the Search results page. The Documents and Maintenance tabs provide access to much more information.

  15. Access documents.

    The Documents tab in TSDR gives you access to the documents that have been filed in connection with the trademark application or registration you are reviewing. These include things like specimens of use, registration certificates, office actions and responses, and others. The Maintenance tab provides information about renewals and such.

  16. Review filings.

    You can access a document listed in the Documents tab by clicking on the hypertext link for it. This enables you to review the specimen of use that was submitted in support of an application for registration of a particular trademark, for example.

Limitations

The Trademark Center’s new trademark image search functionality will be a major timesaver in those cases where the image you are searching matches one that is in the USPTO’s database of trademark registrations and applications. When I searched with the familiar Nike logo and sorted results by relevance, for example, a number of exact matches turned up, and I gained almost immediate access to a wealth of information about it. The new Image Search should be very useful for conducting knock-out searches in those situations where a proposed logo happens to match an existing one.

Its capabilities are a bit more limited, however, when it comes to advanced trademark searches for potentially similar images. I tested it by uploading a random picture of a mosquito.

USPTO.gov Uploading an image of a mosquito

These are the first few of at least a thousand results this image search turned up:

USPTO.gov search results page

This was even after filtering out “dead” results, limiting the search to IC 005, and sorting the results by relevance.

Being a Minnesotan, I can sort of understand the relevance of the ones with airplanes in them. Both airplanes and mosquitoes fly, after all. And mosquitoes can indeed be big here. The likelihood that consumers would confuse any of these logos with a mosquito, however, seems to me to be about as close to zero as it is possible to get.

Currently, “Field tags and Search builder” is a single selection in the dropdown menu, and there isn’t a field tag that represents the results of an image search. This means that when you are using field tags, it is still necessary to rely on traditional design search codes. It would be a major upgrade if the USPTO allowed users to combine Image Search and Field Tag searching together, allowing you to constrain visual AI results by the strict specifications set out in field tags.

Nevertheless, I am still enthusiastic about the Trademark Center’s new AI-assisted image analysis functionality. I am sure it will also be very useful in terms of drafting acceptable descriptions of logos to include in applications.

Visit my extensive Trademark FAQs page.